Farmers Co-Op. El. Ass'n Non-Stock, Big Springs, Neb. v. Strand

• Decision Date: 18 December 1967
• Docket Number: No. 18606,18687.,18606
• Citation: 382 F.2d 224
• Parties: FARMERS CO-OPERATIVE ELEVATOR ASSOCIATION NON-STOCK OF BIG SPRINGS, NEBRASKA, a Cooperative Corporation, Appellant, v. Arthur C. STRAND, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

382 F.2d 224 (1967)

FARMERS CO-OPERATIVE ELEVATOR ASSOCIATION NON-STOCK OF BIG SPRINGS, NEBRASKA, a Cooperative Corporation, Appellant, v. Arthur C. STRAND, Appellee.

Nos. 18606, 18687.

United States Court of Appeals Eighth Circuit.

July 25, 1967.

Rehearing Denied August 23, 1967.

Certiorari Denied December 18, 1967.

COPYRIGHT MATERIAL OMITTED

Wm. B. Craig and Frederic J. Coufal, of Craig, Coufal & Nelson, Omaha, Neb., for appellant and Crosby & Nielsen, North Platte, Neb., were with him on the brief.

James M. Knapp, Kearney, Neb., and William P. Mueller, Ogallala, Neb., for appellee and filed brief.

Before VAN OOSTERHOUT, BLACKMUN and LAY, Circuit Judges.

Certiorari Denied December 18, 1967. See 88 S.Ct. 589.

VAN OOSTERHOUT, Circuit Judge.

Defendant Farmers Co-operative Elevator Association Non-Stock of Big Springs, Nebraska,¹ in case No. 18,606 has appealed from final judgment entered May 16, 1966, upon a jury verdict for $200,000 in favor of plaintiff Arthur C. Strand for injuries sustained by a fall of over thirty feet asserted to have been proximately caused by the negligence of the defendant. In case No. 18,687, the appeal is from an order filed December 1, 1966, denying defendant's motion for relief from the judgment hereinabove described under the provisions of Rule 60(b), Fed.R.Civ.P. Jurisdiction, based upon diversity of citizenship and the requisite amount, is established.

Plaintiff Strand on October 19, 1960, the date of the accident, was an employee of Wilmac Construction Company working on a construction project on defendant's premises which was undertaken under the provisions of a cost-plus contract between Wilmac and the defendant. On the day of the accident, the defendant was engaged in conducting its usual business operations on the premises while the construction work was progressing. The trial court found as a matter of law that the defendant had at least joint control over the elevator premises at the time of the accident and such determination is not challenged on this appeal.

Plaintiff just prior to the accident had been working in the head house located some thirty feet above the floor of the elevator building. After he had completed his work for the day, about 6 p. m., he was injured while descending on a ladder leading from the head house to the ground floor. The ladder had been installed by the defendant long prior to the commencement of the construction work and defendant had authorized its use by Wilmac's employees. It was also used by defendant's own employees in connection with the elevator operation.

Plaintiff alleged that his injuries were proximately caused by defendant's negligence in the following respects: Failure to erect, construct and maintain the ladder from which plaintiff fell in a safe, suitable and proper manner as required by the statutes of Nebraska; failure to provide adequate light and ventilation; failure to exercise ordinary care to keep the premises in a reasonably safe condition; failure to exercise reasonable precaution for plaintiff's safety and the creation of a hazardous condition by the operation of the elevator while the construction work was in progress.

Defendant admitted the happening of the accident, denied all allegations of negligence on its part, and affirmatively alleged contributory negligence on the part of the plaintiff which was more than slight, and assumption of risk.

Errors relied upon by defendant for reversal of the judgment may be summarized as follows:

I. Denial of defendant's timely motion for directed verdict made at the close of all the evidence and its motion for judgment n. o. v.

II. Refusal of the trial court to give a requested assumption of risk instruction and giving instead an instruction to the effect that assumption of risk is not an issue in the case.

III. Refusal of the court to grant a new trial upon the basis of a juror's affidavit asserting misconduct of the jury in the jury room, and refusal to summon jurors for interrogation with respect to the asserted misconduct.

IV. Denial of defendant's Rule 60(b) motion.

A consideration of the issues raised in the light of the record satisfies us that the trial court committed no prejudicial error and hence the judgment entered against defendant is entitled to be affirmed for the reasons hereinafter set out. We shall discuss the errors urged in the order in which they are stated.

I.

Defendant's motions for directed verdict and for judgment n. o. v. raised the issues which are asserted in this appeal to the effect that there is no substantial evidentiary support for finding defendant guilty of any asserted specification of negligence or a finding that the negligence, if any, was the proximate cause of the plaintiff's injuries and additionally urged that the record conclusively establishes that plaintiff as a matter of law was guilty of contributory negligence more than slight, and had assumed the risk of injury.

The accident occurred in Nebraska. The parties appear to be in agreement that the substantive law of Nebraska controls. We pointed out in Chicago, Burlington & Quincy R.R. v. Beninger, 8 Cir., 373 F.2d 854, 856, that it is still an open question as to whether state or federal law controls on the issue of sufficiency of the evidence to support a verdict. We then went on to say that Nebraska and federal standards for resolving such issue are substantially the same. We quoted and followed the standards stated in Wray M. Scott Co. v. Daigle, 8 Cir., 309 F.2d 105, 108-109, a case arising out of Nebraska. We shall follow the same course here. We also cited and followed Nebraska cases holding that the evidence should be viewed in the light most favorable to the prevailing party, giving him the benefit of all reasonable inferences which may reasonably be drawn from the evidence, and further held that when a conflict in evidence exists, questions of negligence, proximate cause and contributory or comparative negligence are ordinarily fact questions for resolution by the jury.

Continental Can Co. v. Horton, 8 Cir., 250 F.2d 637, resembles our present case in many respects. There an employee of the contractor working on defendant-owner's premises was injured by falling from a defective scaffold belonging to the owner. The contractor was authorized to use the scaffold, the owner's employees likewise using it at times. That case was tried before Judge Delehant, an able and experienced Nebraska federal judge. The affirming opinion upon appeal was written by Judge Woodrough, a Nebraska judge who has had a long and distinguished career on this court. In Continental Can, as here, reliance was placed upon R.R.S., Neb., 1943, § 48-425, which reads:

"All scaffolds, hoists, cranes, stays, ladders, supports or other mechanical contrivances used in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct or other structure, shall be erected and constructed in a safe, suitable and proper manner. * * *"

Defendant in our present cases urges that the statute just quoted is inapplicable for two reasons, to wit, (1) it applies only to an employer and defendant is not plaintiff's employer; and (2) the statute does not cover maintenance of the ladder.

In Continental Can, similar contentions were rejected. We there squarely held that the owner in possession was responsible to the employee of the contractor for the failure of the scaffold furnished by the defendant-owner to meet the statutory safety standards. Ladders and scaffolds are both covered by the pertinent statute heretofore cited.

We also held that the owner in possession had a duty under the statute to maintain the equipment. We stated:

"Therefore under Nebraska law the erection of a scaffold which is neither safe, suitable, nor proper is not merely evidence of negligence but is negligence per se and the issue, therefore, is not whether defendant exercised due care in erecting the scaffold, but whether the scaffold was in fact erected and maintained in a safe, suitable and proper manner." 250 F.2d 637, 642.

We find nothing in the Nebraska cases which indicates the interpretation we made of § 48-425 is erroneous and hence we adhere to the interpretation of the statute made in Continental Can.

When the law as above stated is applied to the facts in this case, we are satisfied that a jury issue on the negligence of defendant and proximate cause is made out.

The descent by the ladder from the head house is made through an opening in the head house floor 27¼ inches long and 15½ inches wide. Plaintiff is a rather large man and had a tool belt about his waist at the time of the descent. The evidence discloses that some twisting is necessary to get through the opening. The first rung of the ladder below the head house floor had been removed by the contractor to facilitate passing through the opening. Several protruding nails were left where the rung had been removed. Plaintiff testified that a person cannot see downward while going through the opening but has to feel his way and be somewhat of a contortionist to work his way down. He further testified:

"I started to go down through the opening in the floor on the ladder, and I had put my left foot down through the opening, and in the dark there I finally got my foot set solidly down on the rung, and then I brought my other foot down through the opening and I got my body through, at least the lower portion of my body through the opening, and then as I started to move my right foot off this step and go on down to the next rung on down the ladder, it snagged on my pants. * * Somewhere around my knee there was a nail on the ladder there and it snagged on my pants and I just — I lost my balance and the other foot, my left foot, which was still on the ladder rung, slipped off and I started falling backwards, and from thereon I just fell all the way to the ground."

Plaintiff admitted while on the witness stand that he had made a...